B-188198, MAY 6, 1977

B-188198, MAY 6, 1977

PROTEST THAT NOTATION IN LOW BID, WHICH INCREASED PRICE IF AWARDED ONLY ONE OF TWO SCHEDULES IN INVITATION, CALLED FOR REJECTION OF BID AS NONRESPONSIVE IS DENIED BECAUSE LOW BIDDER WAS AWARDED BOTH SCHEDULES AND NOTATION PLAYED NO PART IN EVALUATION FOR AWARD PROCESS.

ROBERT DOUGAN CONSTRUCTION COMPANY:

ROBERT DOUGAN CONSTRUCTION COMPANY (DOUGAN) PROTESTS ANY AWARD OF A CONTRACT TO EITHER ELKHORN CONSTRUCTION COMPANY (ELKHORN), THE LOW BIDDER, OR WHITE & SONS CONSTRUCTION, INC. (WHITE), THE SECOND LOW BIDDER, FOR THE CONSTRUCTION OF A SEWAGE TREATMENT FACILITY (SCHEDULE I) AND THE REPAIR OR REPLACEMENT OF STORM AND SANITARY SEWAGE LINES (SCHEDULE II) UNDER INVITATION FOR BIDS (IFB) NO. 567-77-5, ISSUED BY THE VETERANS ADMINISTRATION (VA), FORT LYON, COLORADO.

SINCE THE AWARD HAS RECENTLY BEEN MADE TO THE LOW BIDDER, AND IN VIEW OF OUR CONCLUSION BELOW, WE WILL NOT DISCUSS THE PROTEST AGAINST THE AWARD TO THE SECOND LOW BIDDER.

THE IFB WAS ISSUED ON NOVEMBER 1, 1976, AND WAS OPENED AS SCHEDULED ON DECEMBER 29, 1976. TEN BIDS WERE RECEIVED WITH FIVE BIDDERS SUBMITTING BIDS ON ALL ITEMS IN SCHEDULES I AND II AND THE REMAINING BIDDERS SUBMITTING BIDS ONLY FOR THE ITEMS IN SCHEDULE I. THE BIDS OF THE THREE LOW BIDDERS ARE AS FOLLOWS:

SCHEDULE I SCHEDULE II

ITEM 1 ITEM 2 ITEM 1 ITEM 2 ITEM 3 ITEM 4 ITEM 5

ELKHORN 586,000 586,000 198,000 190,000 176,000 173,000 160,000 WHITE 638,000 635,000 247,000 233,000 228,000 223,000 207,000 DOUGAN 673,000 673,000 NB NB NB NB NB

THE BASIS FOR AWARD AS STATED IN THE IFB WAS:

"AWARD: A SINGLE AWARD WILL BE MADE ON ITEM NO. 1 OF SCHEDULE I AND ITEM NO. 1 OF SCHEDULE II BUT IN THE EVENT THE OFFERS) EXCEED THE FUNDS AVAILABLE, SINGLE AWARDS WILL BE MADE ON ITEM 2 OF SCHEDULE I AND ITEM 2, 3, 4, OR 5 OF SCHEDULE II. OFFERORS SHOULD QUOTE A PRICE ON EACH ITEM LISTED FOR SCHEDULE I OR EACH ITEM LISTED FOR SCHEDULE II. OFFERORS DESIRING TO BID ON BOTH SCHEDULES MAY DO SO."

ELKHORN'S BID NOTED THAT "IF AWARDED ONLY SCHEDULE II ADD $30,000 TO SCHEDULE II." THE AWARD TO ELKHORN WAS FOR ITEM 1 ON BOTH SCHEDULES. DOUGAN CONTENDS THAT THE ABOVE NOTATION ON THE ELKHORN BID CALLS FOR REJECTION OF THE BID AS NONRESPONSIVE BECAUSE (1) THERE IS NO PROVISION IN THE IFB FOR SUCH AN ALTERNATE BID; (2) THE IFB STATES THAT UNLESS CALLED FOR, ALTERNATE BIDS WILL NOT BE CONSIDERED; AND (3) THE BID HAS TAKEN EXCEPTION TO THE BIDDING CONDITIONS BY LIMITING THE FIRM'S OBLIGATION TO PERFORM.

BECAUSE THE AWARD TO ELKHORN COVERED ITEM 1 IN BOTH SCHEDULES, THE NOTATION TO WHICH DOUGAN OBJECTS PLAYED NO PART IN THE EVALUATION FOR AWARD PROCESS BECAUSE THAT CONTINGENCY NEVER OCCURRED. CONSEQUENTLY, THE PROTEST IS DENIED.